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One of my areas of research deals with First Amendment standards related to college and university student speech. Part of my interest in the subject arises from how courts often apply the same precedent (previous legal decisions) to both secondary students and to those in higher education without recognizing the important legal (First Amendment) distinctions that should exist between these two groups of students. This situation contrasts with how, under negligence standards, for instance, courts often stress that college and university students are assumed to be adults. Yet, in higher education student speech cases, courts often don’t readily address the fact that First Amendment standards arguably should be much different for students in higher education (i.e., adults) versus those at the secondary level.

A case that arose at an institution that I attended (Auburn University at Montgomery) has consistently struck me as a poster child for a court not making such distinctions in student speech cases. In Heenan v. Rhodes, 757 F. Supp. 2d 1229 (M.D. Ala. 2010), a student argued that her dismissal from a nursing program took place because she spoke out against a disciplinary point system followed by the nursing program. While the student made some of her comments in class, she also expressed her objections outside of class. Even though the student made at least some of her comments outside of class, the court did not turn to U.S. Supreme Court precedent involving out-of-class student speech (i.e., Tinker v Des Moines School District). Instead, the court turned to Hazelwood v. Kuhlmeier, which involved regulation of students’ in-class speech.

To support the rationale for this approach, the court stated that Tinker dealt with political speech and looked to the Supreme Court’s decision in Morse v. Frederick to support the position that the nature of the speech at issue in Tinker raised special First Amendment concerns. Thus, while the nursing student seemingly made at least some of her comments outside of any kind of formal instructional setting, the court determined that Hazelwood should still apply.

The court stated that the student’s repeated complaints about the nursing school’s internal disciplinary system “challenged the grading and disciplinary practices of individual school instructors within the classroom setting.” As such, the court characterized the student’s speech as “more akin” to that in Hazelwood. The opinion asserted that “where a student’s speech threatens a school’s pedagogical and curricular system, it is not subject to the expansive protections applied to student political speech under Tinker.”

In a second opinion, 761 F. Supp. 2d 1318 (M.D. Ala. 2011), while refusing to rescind the grant of summary judgment against the student, the court did offer some clarifications, likely recognizing how it was really overreaching in seeming to apply Hazelwood to the student’s out-of-class speech in its first decision. The court stated that punitive action against the student for out-of-class speech that was not made to instructors was impermissible under Hazelwood. But, the court also seemed to state that Hazelwood should still apply to comments concerning the nursing standards made in the presence of her nursing instructors.

I think the court’s second opinion also didn’t offer a particularly appropriate conception of how First Amendment speech standards should work for college and university students. Perhaps because the court felt that this individual student was particularly annoying, it offered unsound principles related to First Amendment protections for student speech in higher education. Quoting Hazelwood, the opinion stated, “Because adverse action taken for this speech [complaining to instructors] would be ‘reasonably related to legitimate pedagogical concerns,’ the speech would not be protected.” It seems to me that this second opinion also has some pretty flawed logic.

If a student complains about professional or academic standards to an instructor, then why shouldn’t such speech receive First Amendment protection? As long as the student is able to satisfy such standards and the complaining does not violate other permissible restrictions on student speech and conduct (such as standards related to harassment or disrupting a class), then shouldn’t the First Amendment protect such speech? If college is supposed to be a time to learn and to question, then it seems to me that part of that process should be the freedom to question whether or not assessments and standards are fair. Again, I’m not advocating that students should be able to harass instructors or disrupt class or immune from satisfying professional or academic standards. But they should enjoy First Amendment protection in offering their views to instructors regarding the fairness of assessment criteria and professional standards, as long as done so appropriately. Right?

Okay, time to go prepare for class, and if any student has problems with the assignment, then I'll just email him or her a copy of Heenan . . .

Last year, 11 college students staged a protest during Israeli Ambassador to the United States Michael Oren’s speech at UC Irvine. The incident hit the newsstands and You-Tube circuits because of the students’ disruptive behaviors and the criminal charges that followed. Well, 10 of the 11 students were convicted of misdemeanors associated with their disruption of the meeting (one for the disruption and one for the conspiracy to disrupt). Here’s a good review of the incident along with a You-Tube video capturing Oren’s speech at UCI.

While the students’ conduct justified University discipline and the state’s charges of misdemeanors, the case will likely do more harm to student free speech on college campuses. I hope that we implement good educational programming so students understand acceptable free expressions versus disruptive ones. At the same time, I am not certain that this incident should have escalated to criminal charges. Shall I pick out a bunch of other coordinated student disruptions involving public gatherings and no criminal charges were filed? I suspect what made this case much more significant (and worthy of criminal charges) over other public disruptions of college campus speakers is the sheer number of people involved. It’s possible that the district attorney might have reconsidered the case if fewer people had participated in this disruption. Who knows? Nonetheless, I think that this incident – albeit an outlier of student free speech incidences – will be one that we’ll be discussing as the example of might happen if students disrupt a speaker.

Interesting news bit in the Chronicle recently. A former college student-athlete has sued the NCAA, claiming that the organization did not adequately protect him from concussions while playing and, as a result, suffers from side effects to this day. To my knowledge, this is a new line of litigation and will be interesting to watch. Contrary to other areas of the law (e.g., mental health) the standard of care is actually HIGHER for intercollegiate athletics than it is for athletics in the K-12 sector. Cases like Kleinknecht recognized a special relationship between the recruited student-athlete and the level of interdependence and control exerted by the institution. As on-the-field injuries become increasingly prevelant, courts may hold institutions to a higher standard than simply instituting policies regarding safety.

Last week, I blogged about a recently filed case against the University of Michigan and several other research universities. The Universities involved in this joint project were digitizing “orphaned” copyrighted works. Apparently, on Friday the 16th, the University of Michigan announced that they mistakenly classified some works as orphaned. It’s now suspended the project. Read more here.

These events still raise several questions. First, what are the proper protocols for deciding whether a copyrighted work is truly an orphaned one? What’s the legal standard to follow (e.g., is good faith sufficient and what constitutes good faith?)? Second, if the works had been orphaned, could libraries digitize them under fair use? Should there be a difference between for-profit and non-profit usage? Third, should Congress get involved and how should they proceed? Perhaps, alternatively (or in addition to Congress), should there be a board consisting of representative parties to help construct a series of guiding principles?

I just wanted to put in a little shameless plug for an Education Law Association (ELA) annual meeting preconference event that Jeff Sun has taken the lead in organizing that may especially be of interest to higher education and student affairs professionals in or near the Chicago area. The session is entitled "Managing College Students' Social Networking and Other Online Postings" and will be held on Wednesday, November 9, 2011, from 1:00-4:15 pm at the Westin River North in Chicago. Participants will include student affairs professionals, faculty, and lawyers. Despite my participation in the session, I think it will be an informative and interactive (and fun) event that will provide a lot of useful information to attendees. I also encourage you to consider attending the ELA general conference.